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As you might know, we held a webinar last Friday about the new EEOC guidance on criminal records for employers.  We are now making the recording of the webinar available for download by clicking here .  The description of our session is listed bel0w.

Brace yourself, employers. The EEOC has been busy crafting new guidance that will affect the way you use criminal …

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As detailed in our blog post yesterday, we are highly disappointed with the new EEOC guidelines on criminal background checks and the burden they will place on employers going forward.  The outcome leaves employers with vague direction and no real road-map for compliance, while limiting their ability to protect their employees, their customers and their businesses.  If anything, it just exposes them to further litigation from the EEOC and private litigants.

I think EEOC Commissioner Constance Barker captured the essence of our grievances with the EEOC’s actions in her dissenting opinion which included the following:  “My concern for this Commission is how this Guidance will be received by the courts.  To the extent that we have re-written Title VII, the courts will NOT give it deference.  That saddens me because this Commission does not need to be embarrassed again by the courts.”

Check out this excerpt from her response to the new guidelines. This is well-worth the read.

Constance Barker

Comments to the Commission

April 25, 2012


I object to – and will vote against – the proposed new Guidance on Criminal Background Checks for 4 fundamental reasons:

First and foremost – I object to the utter and blatant lack of  transparency in the approval process.  The proposed revision before us today represents a major shift in the advice we have given the American public for the last 22 years.  Yet, we are about to approve this dramatic shift in our interpretation of the rights of job applicants and the obligations of America’s businesses under Title VII without ever circulating it to the American public for review and discussion. There is absolutely no justification for totally excluding the American people from this process or for this blatant failure to be transparent in how we conduct our business. I am devoted to the issue of civil rights and to the work of this Commission, but if we vote to approve this Guidance today, how can we expect the American people to have confidence that this agency operates openly  and with full transparency?  We are public servants.  We work for the American people.  What could possibly justify keeping them from knowing what is in this document before we approve it?

This particular proposed new Guidance – which in reality is a kind of regulation -  has tremendous implications for Americans.  It is exactly the type of policy shift that we should share with the American people — ask them to take a look, tell us what they think — have we forgotten anything — have we explained things well or is it confusing — and most importantly — how will this impact you.   But we didn’t do that.  Instead, the document was rapidly brought to a vote without the American people ever having a chance to see what is in it.  That is just plain wrong.

There are people in the Commission Room  today and throughout America who have considerable expertise in the subject the Guidance addresses, yet we are about to give final approval to this draft without ever letting any of these experts or the public at large see a single word that it contains.  And, we are approving it without even bothering to  submit it to OMB for their expert review.

That begs the question — why?  Why don’t we want America to see what’s in this document before we make it final? We should have spent months reviewing and discussing this with the public as we have other regulatory and sub-regulatory documents.  Yes, the Commission did have a meeting on background checks and did hear from stakeholders on the general subject of the pros and cons of conducting criminal background searches but seeking general input is a far cry from sharing what is in the actual proposed revised Guidance.  As soon as a revised Guidance was drafted, the public was shut out.

Here is my second concern:  it is my understanding that the Senate Appropriations Committee, Subcommittee on Commerce, Justice & Science  — the  committee that determines our funding year to year — under the direction of Chairman, Sen. Barbara Mikulski and ranking member, Sen. Kay Bailey Hutchinson, in the Report attached to the Appropriations Bill, specifically addressed their concerns about the haste with which this Commission was proposing to approve changes to the current Criminal Background Checks Guidance and specifically instructed the Commission to (a) engage stakeholders in discussion about the intended changes to the criminal background checks guidance and (b) circulate any proposed changes to the Guidance for public input for at least 6 months before bringing it  before the Commission for a vote.  When the Senate Appropriations Committee - the Committee that controls our funding – attaches to the bill that will determine our funding – specific instructions to hold off taking any action on this revised Guidance until we have circulated a copy to the public for input for at least 6 months — it seems to me we should  take that seriously.  So, why is this even on the agenda today?  Are we seriously going to just ignore this directive from the Senate Committee that decides our funding?

Especially when – and here’s the irony – there is absolutely no need to take action on this today or anytime in the immediate future.   What is the big rush to approve this Guidance?  What would justify ignoring a Senate Appropriations directive and ignoring our obligation to be transparent with the American people? There have been no changes in Title VII  – no new Supreme Court decisions that would compel a single change to our current guidance.  In contrast – our Guidance on the use of arbitration agreements in employment contracts has been out-of-date and a misstatement of the law since the first Supreme Court decision on that subject in 1991.   As far as I know, there’s no effort being made to revise that Guidance.

Thirdly – I object to the guidance because it so obviously exceeds our authority as a regulatory commission.  We are an enforcement agency.  We have the authority to issue, amend or rescind suitable procedural regulations.  We have no authority to make substantive changes in the law by issuing Guidances that go beyond what is contained in the statutes as interpreted by the courts.  Our job is to follow Congressional intent and court interpretation — not make new law.  No matter how well intentioned we may be — no matter how much a change in the law may be warranted — we simply lack the authority to make those changes through the issuance of Guidances.  It is Congress’ job — not ours — to weigh the pros and cons of proposed new legislation and approve or disapprove it.   We are not Congress. We are not part of the legislative branch.  And,  it is the job of  the courts to interpret the laws that Congress passes.  We are not the courts. We are not part of the judicial branch.  Our job is to explain what is already the law — not to expand it.    No matter how much some of us may want Title VII to provide additional protections we cannot use our authority to issue guidances, to create new rights or protections that Title VII does not provide.  If we think Title VII should be expanded, we should make our concerns known to Congress — not take it upon ourselves to do Congress’ job.

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Please note that this post was written by Angela Bosworth

It’s here!  The much anticipated EEOC guidance on the use of criminal records in employment was issued today, setting off a flurry of interpretations, complete with webinar invitations and blog posts. Not to be outdone, here’s our take on the matter.

By way of introduction, the road to new guidance was paved with protest, controversy and political horse-trading.  The EEOC has long maintained that the use of credit and criminal history in hiring can lead to “disparate impact” discrimination.  Disparate impact claims rely on statistical information to prove that use of criminal history and credit information has an unintended discriminatory effect on minorities. Studies that show a higher rate of arrests for blacks and Hispanics are often cited in disparate impact cases based on criminal history. While an increasing number of employers are seeking background checks out of security concerns, at the same time, more and more people are released every year from US prisons and jails. The growing ex-offender population, coupled with the economic climate and high unemployment, creates the perfect storm for disparate impact claims.

New criminal history guidance supports the Commission’s commitment to put an end to systemic discrimination and the push to help ex-cons get back to work.  In the past year, the EEOC has filed a record number of class action lawsuits alleging that employer’s use of credit and criminal history amounts to discrimination against blacks and Hispanics.  Pepsi recently paid a very well publicized 3.13 million dollars to settle a class action suit brought by the EEOC.

The push for new guidance is rumored to have been initiated by Obama-appointee and Chair Jackie Barrien, and was pushed to a vote this month due to the unexpected announcement from Democratic Commissioner Stuart J. Ishimaru that he would not finish his term. When he leaves at the end of April, Democrats lose their majority on the panel, and the chance of issuing this kind of guidance is slim. And because of the backlash the Obama administration has already encountered for recess appointments, the seat will likely remain vacant for the remainder of the year.

So without public comment or review, employers have been handed a new guidance to address using criminal history.  So what exactly is guidance, anyhow, and is it really just guidance?

Yes and no.  Technically speaking, the EEOC guidance is not binding on courts and carries no “official” legal weight. In practice, however, courts rely heavily on agency policy statements and the EEOC guidance in particular.  Employers understand and treat it like de facto legislation—Failure to heed the guidance may land you on the losing end of a class action suit in Federal Court.

The old guidance was issued in 1987 and recommended that before using criminal history information, employers had to take into consideration the following to demonstrate business necessity:

• the nature and gravity of the offense or offenses;

• the time that has passed since the conviction and/or completion of the sentence; and

• the nature of the job held or sought.

1987 EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.

The EEOC also issued a 1990 policy statement on employers’ use of arrest records. Under that policy statement, employers have to consider the following before using arrest records to make an employment decision:

(i) the likelihood that the individual engaged in the conduct arrested for; and

(ii) job relatedness.

1990 EEOC Policy Statement on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.

Blanket exclusions of individuals with criminal records have always been suspect, and the use of arrest records has historically been strongly discouraged.

The new guidance supersedes the old policy statements, but incorporates the guidelines. It is heavy on background information, case studies and examples. It is sprinkled with “best practices” with a healthy dose of footnotes. The major game changer is a new requirement for an employer’s defense: Individualized Assessment.

In summary:

  • Job relatedness and business necessity remain the legal standard for an employer’s defense. Two times when this standard is met are defined:
    • “The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); OR”
    • “The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, the nature of the job (the Greene factors). The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity.”
    • “Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.”
    • Compliance with Federal law/mandate that conflicts with Title VII is a defense.
    • State and local laws are pre-empted by Title VII if they “purport to require or permit the doing of any act which would be an unlawful employment practice” under Title VII

Other notables:

  • It’s looong. 52 pages long, to be exact. 26 are guidance, the remainder is endnotes.
  • The difference between arrest and conviction records is discussed at length.
  • No more enforcement language. It is geared solely to employers.
  • No prohibition on open/pending cases. While arrest records are inherently suspect in terms of disparate impact discrimination, on an individual basis consideration of an open/pending arrest is still allowed.
  • Individualized assessment is loosely defined as follows: an employer informs an individual that he may be excluded from a job because of past criminal conduct, provides an opportunity for the individual to demonstrate that the exclusion does not properly apply to him; and considers the individual’s additional information should change the decision (looking to job relatedness and business necessity.

The Individualized Assessment section of the document lists “relevant” evidence that an employer should consider.  This is a MUCH more extensive list than in prior statements.  The list includes facts or circumstances surrounding the offense, the number of convictions, the age at the time of the conviction/release from prison, evidence of no related incidents, rehabilitation, employment or character references, fitness for the position, and bonding.

If the individual does not respond to an employer’s request for additional information, the employer can make the decision without the additional information.  How long or under what circumstances an employer must wait is not clear.

The guidance gives many examples in an attempt to clarify when and what an employer can consider.  We will be providing a more detailed overview of the ways to establish job relatedness and business necessity as we review the Guidance in more detail.

The last portion of the Guidance is Titled “Best Practices”, and it digests the EEOC’s recommendations to employers who plan to use criminal records.  Besides the expected recommendations to train personnel on Title VII, develop policies and procedures, conduct individualized assessments, keep good records and notes, and maintain confidentiality, the Commission recommends that employers limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.  While this is not as specific as a “ban the box” limitation, it does suggest that employers need to review their background screening program to make sure they are asking for defensible information.

The Commission approved the guidance by a vote of 4-1, with Republican Constance Barker providing the lone no vote.

Click here to read EEOC press release

Click her to read the actual guidance

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The EEOC has been busy crafting new guidance that will affect the way you use criminal history in employment. Today the EEOC is expected to vote to approve the new Enforcement Guidance on the use of criminal records in employment, which will go into effect immediately. Changes are coming your way.

Join EmployeeScreenIQ’s Angela Bosworth, JD and Nick Fishman for this special call-in event to review the changes to the guidance and understand what it means for you and your organization.

Register today for this briefing
EEOC on the use of criminal background checks in employment.

Date: Friday April 27th
Time: 2:00 PM – 3:00 PM EST
Register here:

Topics covered include:
• Comparison of the new guidance to the prior guidance
• Bright line tests and limitations on number of years reviewed
• State law issues and mandatory criminal checks
• Open and pending cases
• Rehabilitation and recidivism
• Relevancy of information, job relatedness and best practices

Download the Whitepaper now!

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It’s official–The Equal Employment Opportunity Commission (EEOC)  will meet on April 25, 2012, and is expected to vote and approve new enforcement guidance on the use of criminal background checks in employment.  Credit check guidance, which was initially on the table, has been scrapped—presumably because the proponents could not get the votes needed to ensure passage.  As the Wall St. Journal pointed out, the Commission is rushing to push the vote next week, before the imminent departure of Democratic Commissioner Stuart J. Ishimaru on April 29. Once he leaves, Democrats will lose their majority on the panel, and until he is replaced, future votes are likely to result in a 2-2 gridlock.

We expect the EEOC’s new guidance will substantially modify the existing guidance that has been around since 1987. New guidance will supersede the old guidance, and will take effect immediately upon passage. We anticipate it will contain additional factors for employers to consider when using criminal records, such as the age of the offender at the time of the crime, rehabilitation, timing of the inquiry into criminal history, relevancy of information, and best practices in handling open cases and arrests.  The guidance is intended to assist both employers and those charged with enforcement at the EEOC. But we are concerned that the passage of new guidance without input from employers or the public with muddy the waters and have a net effect of complicating the hiring process. Which is the last thing we need right now, when employers are finally starting to rebound and hiring is finally on the upswing.

Shameless plug for webinar?  Join us for webinar on the 26th, and a special conference call the 27th.

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And the gloves have officially come off.  If the Equal Employment Opportunity Commission (EEOC) thought that they would quietly provide new guidance (i.e. de facto legislation) to employers on criminal background checks and credit reports, the Wall Street Journal just sent the first shot across the bow.

As we have previously mentioned in some recent blogs, the EEOC is scrambling to get this guidance out by the end of the month.  Why the rush?  Check out WSJ’s editorial below.  I imagine that this is just the beginning of the criticism that will come should the EEOC make wholesale changes to the current rules without seeking public comment and by passing these rules without a vote by our elected officials.

The Hiring Police

The Obama Administration’s favorite antidiscrimination tool is “disparate impact,” which relies on statistics to allege racial prejudice, regardless of intent. The Justice Department is using it to lean on banks to lend to more minorities, and now we hear the Equal Employment Opportunity Commission wants to use it to wield more power over business hiring.

Several sources tell us the Commission is working on policy guidance that would significantly limit companies’ use of credit and criminal histories in hiring under Title VII of the 1964 Civil Rights Act. A Commission spokeswoman declined to comment by email, “citing Agency practice barring public discussion of any policy that may or may not be in development.”

No wonder. We’re told that some members of the Commission want to declare that the use of credit checks and criminal histories may have a disparate impact on African Americans and Hispanics. Nothing like the prospect of being branded a racist to force companies to change their hiring practices to suit government’s bidding. Cue the trial bar.

The irony here is thick, given that credit checks were once viewed as a way to undermine the good ol’ boy network and base hiring decisions on facts, not race. Once upon a time, too, there was a distinction between discrimination based on race, which is rightly outlawed, and discrimination based on individual ability and responsibility, which is crucial to making good personnel decisions for colleagues and customers.

A company might use a credit check if a prospective employee would have a job that handles customer monies, for instance. A child-care center might want to know if an applicant has a criminal record. Both help companies make prudent hiring decisions.

The Commission would be overstepping its legal bounds if it proceeds. Under Title VII, the Commission has the ability to “issue, amend or rescind suitable procedural regulations,” not make substantive new rules. Congress expressly permitted the use of credit and criminal histories in hiring decisions under the 1970 Fair Credit Reporting Act and subsequent amendments.

The Commission has held public hearings on the general topic of background checks that include credit and criminal histories, but it hasn’t made its prospective guidance available for public comment or sought a review from the White House office that examines new regulations. The U.S. Chamber of Commerce earlier this month wrote to Cass Sunstein, chief of the White House Office of Information and Regulatory Affairs, asking for such a review. Good idea.

The Commission’s heightened interest in wielding disparate impact over business hiring may have something to do with the pending departure of Democratic Commissioner Stuart J. Ishimaru. Once he leaves, Democrats will lose their majority on the panel, and the chance of issuing this kind of guidance will diminish considerably.

The only certainty is that such a decision would further complicate business hiring at a time when America’s millions of jobless need more potential employers. The harder government makes it to hire or fire someone, the fewer people will be hired.

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The U.S. Chamber of Commerce has asked the Office of Management and Budget (OMB) to instruct the Equal Employment Opportunity Commission (EEOC) to allow for public comment prior to releasing new guidelines on the the use of employment criminal background checks and credit reports.

As we’ve previously written, the EEOC believes that these background checks have a disparate impact on minorities and are bent on creating rules that will limit the ability of employers to access and use such information.  Ordinarily, agencies allow for public comments so that they can take into account all sides of the equation.  In this case, has refused such requests on numerous occasions.

It appears that they are hiding under the veil that they are considering “guidelines” not “laws”, even though they know very well that their guidance will serve as a de facto law.  In my opinion, they are bypassing public comment because they know that the public response will not be favorable not only from the business community, but also from consumer, volunteer and other charitable organizations.

Chamber Urges OMB to Require EEOC To Open Process on Background Checks

The U.S. Chamber of Commerce is urging the Obama administration to compel the Equal Employment Opportunity Commission to allow public input as the agency ponders issuing new enforcement guidance regarding employers’ use of criminal background and credit checks.

In an April 2 letter to Office of Management and Budget official Cass Sunstein, the chamber said EEOC’s potential guidances on both topics warrant OMB’s review for procedural and substantive reasons.

“By all accounts the EEOC is now preparing to approve these significant guidance documents without making them available for public comments and without seeking review by [OMB],” the chamber told Sunstein, head of OMB’s Office of Information and Regulatory Affairs.

The chamber said that although EEOC has held public meetings “on the very broad topics” of employers’ use of background checks and individual commissioners have met with agency stakeholders to hear their concerns, EEOC “has not shared its draft guidance for the opportunity to provide comment.”

“[A]t this stage, members of the public can only guess as to the direction that the guidance will take,” the chamber said. “This is contrary to the strong public policy favoring pre-adoption notice and comment on guidance documents.”

The chamber urged OMB to ensure that EEOC does not finalize guidance until it has been properly reviewed by OMB and made available for public notice and comment.


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I hope you aren’t tired of reading about class action lawsuits brought by the EEOC. The Commission is linking discrimination to background checks –specifically credit history and criminal records. So I’m not so surprised to see that the agency has more of the same planned for the next few years.  When the Commission announced their strategic plan for fiscal years 2012-2016 a couple of weeks ago, at least one message was clear–there is no intention to slow down the EEO express being driven by Chair Jacqueline A. Berrien.

While strategic plans from federal agencies can be painful to read, there are a couple of noteworthy points here. The plan was light on specifics, but the EEOC announced “the Plan serves as a framework for the Commission in achieving its mission by focusing on three strategic objectives: strategic law enforcement, education and outreach, and efficiently serving the public.” The main focus is on the first objective—enforcement.  “In keeping with the agency’s statutory mandate, the majority of the EEOC’s financial and human resources will be devoted to Strategic Objective I.”

Let me break it down. Translation= more litigation. That makes sense, considering the “No more Mr. Nice Guy” trend that we have been watching for past year. Targets have been large companies like Pepsi, Kaplan Higher Education and Panda Express.  The Commission will continue to focus on systematic discrimination—patterns, practices, policies, and class cases where the alleged discrimination has a bigger impact. Large employers take note.

One more interesting point:  the plan was approved 4-1, which means at least one commissioner wasn’t buying what the Commission was selling. On a Commission of five individuals with a shared goal of ending employment discrimination and promote equal opportunity, it’s pretty interesting that they did not have a unanimous vote.

Constance Barker, the sole Commissioner who voted against the plan, said that she hoped that the Commission would stop “evaluating professional lawyers on the basis of the number of lawsuits that they file.” Wow. She voted against the plan, saying that the EEOC is losing focus of its “core mission,” which is to “prevent discrimination from ever occurring,” not to stop nor to provide remedies once discrimination has occurred. “So to the extent that this plan does not provide that as its first and foremost strategic priority, the plan simply and profoundly misses the mark.”  Watch all of the action here.

Consider this–maybe it’s time to slow down the excessive litigation and zealous pursuit of multimillion dollar settlements that are not solving the problem, and quit just playing lip service to prevention. Agree or disagree–it’s nice to finally hear a different point of view being intelligently articulated. Thank you, Commissioner Barker.

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It was just announced that Pepsi Beverages will pay $3.13 million to settle a lawsuit with the Equal Employment Opportunity Commission (EEOC) over alleged discriminatory background screening practices.

The case centered around Pepsi’s policy to not hire applicants on a permanent basis whose background checks revealed an arrest that did not lead to conviction for positions at their factory.  In particular, the EEOC said that 300 black applicants were denied permanent employment due to arrests that did not lead to convictions.  The policy was deemed discriminatory because there was “reasonable cause to believe that the criminal background check policy formerly used by Pepsi discriminated against African Americans in violation of Title VII of the Civil Rights Act of 1964.”

Personally, I wish this case didn’t solely focus on minorities.  After all, I have to believe that white applicants were treated the same way.  It’s like saying that the policy would have been fine had they not attempted to hire minorities.

Using arrest records that didn’t lead to convictions is a tough policy to enforce, especially when it is a blanket policy, but it is permissible (please consult with your legal counsel for more on this).  This case underscores the need for employers to take a close look at their background screening standards and to align non-hireable convictions (or arrests) with the responsibility of the job itself.

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Sorry, I’m a little slow on posting this, but the EEOC recently wrote an opinion letter that suggests that requiring a high school diploma as a condition of employment may be discriminatory.

Now as many of you know, I would usually take this opportunity to excoriate the EEOC.  However, I’m turning over a new leaf this year and refuse to be drawn into negativity (anyone want to place a wager on how long this will last for?).

ERE’s John Zappe wrote a great post on this topic.  See excerpt below.

An “informal discussion letter” just posted to the EEOC’s website says that under certain circumstances, requiring a diploma may run afoul of the Americans with Disabilities Act. If the requirement screens out persons unable to earn a diploma because of a bonafide disability, the employer has to justify the requirement as job-related and consistent with business necessity.

Doing that for some jobs isn’t going to be easy. Employers almost as a matter of routine include at least a high school degree requirement in every job posting, including for janitors and cleaners. The U.S. Labor Department, however, says, “Most building cleaning workers, except supervisors, do not need any formal education and mainly learn their skills on the job or in informal training sessions sponsored by their employers.”

Informal discussion letters aren’t policy. That’s up to the Commission members. However, employment lawyers see the letter as signaling the possibility that the EEOC may be looking to step up its enforcement of other provisions.

Says Proskauer Rose attorney Nigel F. Telman, “I could see them potentially … saying at some point” that a high school diploma requirement “may have a disparate impact on a particular class of people.”

For instance, 87.1 percent of the U.S. population older than 24 has a high school degree. However, only 62.9 percent of Hispanics do. So requiring a degree does have a disparate impact nationally. That alone isn’t illegal. But it does mean you’ll have to justify the requirement as both job related and consistent with business necessity.

If it’s the ADA that’s involved, you’d also have to also establish that with or without an accommodation the disabled person is unable to do the job.

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Discriminatory?  Really?

Doesn’t everyone in this country has access to public education?  What they chose to do with that access is up to them. I agree that every job should have requirements that correspond to the position, but discriminatory?  What on earth is the EEOC thinking?  Why not just make it illegal to actually have a degree?  I’m sure our kids would love that. I guess they aren’t happy until their relentless policies force everyone into court (or out of business).

So much for turning a new leaf.  I couldn’t hold back:)

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